Bowen v. Recorder's Court Judge

• Citation: 179 N.W.2d 377,384 Mich. 55
• Decision Date: 22 September 1970
• Docket Number: No. 14,14
• Parties: Tommie Lee BOWEN, Plaintiff-Appellant, v. RECORDER'S COURT JUDGE, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 377

179 N.W.2d 377

384 Mich. 55

Tommie Lee BOWEN, Plaintiff-Appellant, v. RECORDER'S COURT JUDGE, Defendant-Appellee.

No. 14.

Supreme Court of Michigan.

Sept. 22, 1970.

Kenneth A. Webb, Troy, for plaintiff-appellant.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Luvenia D. Dockett, Asst. Pros. Atty., Detroit, for defendant-appellee.

Before the Entire Bench.

DETHMERS, Justice.

On August 5, 1963, plaintiff was arrested and arraigned on a warrant charging him with murder in the first degree. From that date to July 18, 1964, a period of 11 months and 13 days, he was held in county jail without bail awaiting final disposition of his case. On the latter date he was sentenced in the recorder's court to serve a term of 10 to 15 years in State prison, after having entered a plea of guilty, just 15 days earlier, to a charge of second degree murder. The record does not disclose whether the time spent in the county jail prior to sentence was taken into consideration in determining the length of sentence imposed.

One year and 8 months after sentence, to wit, on March 31, 1966, P.A.1965, No. 73 (C.L.1948, § 769.11b (Stat.Ann.1954 Rev. § 28.1083(2))), went into effect. It provides as follows:

'Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.'

By its language, the act is specifically made prospective only.

On March 27, 1968, a judge of the recorder's court acknowledged a recent motion by plaintiff to credit on his sentence and subtract from it the 11 months and 13 days spent in county jail, and denied it for the stated reason that the act did not go into effect until long after the date of sentence and was, therefore, inapplicable to this case.

Plaintiff filed a complaint with the Court of Appeals for superintending control to require the recorder's court to comply with his request for presentence time credit. The Court of Appeals denied the complaint and petition. The case is now here on leave granted to appeal from the denial.

Acknowledging that the statute in question reads prospectively only and went into effect after imposition of sentence upon him, plaintiff contends that denial of his petition for presentence time credit under such interpretation of the statute renders it violative of the equal protection of the laws guarantees of the State and Federal Constitutions ¹.

Plaintiff admits that he has found only 2 decisions in this nation on the precise question raised by him and that they both hold adverse to his position. The cases are: State v. Sedillo (1968), 79 N.M. 255, 442 P.2d 213, and State v. Thomas (1968), 79 N.M. 346, 443 P.2d 516. See, also, State v. Dalrymple (1968), 79 N.M. 670, 448 P.2d 182, and cases therein cited. In substance, the New Mexico court held, on this subject, that since the decisions of the United States Supreme Court have denied retroactive application to such basic constitutional rights as those enunciated in Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, there can be no merit to a claim that the denial of retroactive application to a newly created statutory right is a denial of equal protection of the laws. We agree.

When sentence was imposed upon plaintiff on July 18, 1964, it was a perfectly legal sentence in keeping with the statutory limits for the crime of which plaintiff was convicted ². Had the legislature later seen fit to amend the statute to fix the punishment for second degree murder to be a term of not less than 5 nor more than 10 years in prison, would that have operated then to render plaintiff's previous sentence of 10 to 15 years invalid and entitled him to a new term in keeping with the limits of the amendment? By no means. Neither can the subsequent enactment here alter the earlier sentence.

Court of Appeals and recorder's court affirmed.

BRENNAN, C.J., and KELLY, and BLACK, JJ., concurred with DETHMERS, J.

ADAMS, Justice.

The legislature addressed itself to one aspect of the problem of disparity of sentences when it enacted P.A.1965, No. 73 (M.C.L.A. § 769.11b; Stat.Ann.1970 Cum.Supp. § 28.1083(2)). ¹ Previous to the enactment of this statute, it was a matter of discretion with the sentencing judge to grant credit against a sentence for time served in jail prior to sentencing. Some judges, in sentencing, took into account time served in jail prior to sentencing, while others, as exemplified by this case, did not.

I agree that Act 73 is prospective in its application. All defendants sentenced after March 31, 1966, the effective date of Act 73, will receive credit against their sentence for time served in jail prior to sentencing.

The disparity with which we are here concerned is the difference in treatment accorded to those defendants who, prior to March 31, 1966, could not make bail and those defendants who either were able to make bail or who received from the trial judge credit for time served prior to sentence when sentence was imposed.

In the recent case of Williams v. Illinois (June 29, 1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586, the Supreme Court of the United States had occasion, speaking through Chief Justice Warren Burger, to...